Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Accommodation Module)

BY-LAWS - whether respondent lot owner has breached one or more of the scheme's by-laws - whether body corporate complied with requirements for serving contravention notices - whether committee acted reasonably in the circumstances when it was making decisions about by-law enforcement.

Act, ss 94(2), 100, 182-188, and 270

1. This application is dismissed pursuant to section 270(1)(c) of the Act on the grounds it appears to me to be misconceived and without substance.

• [1] This application is about improvements to the common property, allegedly in contravention of the by-laws for the scheme. The body corporate claims that the respondent has added two large black planter boxes, wheelie bins, weed mat, and plantings, to common property without prior approval. It seeks an order that the respondent remove the improvements and restore the common property to its original condition.
• [2] For the reasons given below, I have dismissed the application in its entirety.

• [3] Moreton Manors CTS 25134 (Moreton Manors) comprises of 72 lots and common property. The community management statement (CMS) shows the Accommodation Module applies. The scheme is registered as SP 100266, which is a standard format plan of subdivision.
• [4] The applicant is the Body Corporate for Moreton Manors.
• [5] The respondent is the owner of Lot 63.
• [6] This dispute was not conciliated because one of the parties was unable to attend. The Commissioner invited the respondent and all owners to make a submission on the application for final orders. The respondent and the owner of another lot made a submission. The applicant did not inspect the submissions and did not provide a reply. A dispute resolution recommendation was made to refer the application to department adjudication.

• [7] As an adjudicator, I have jurisdiction and power to make a range of orders to resolve disputes about the exercise of rights or powers, performance of duties under, or a claimed contravention of, the Act or the CMS.[1] This dispute is about whether the respondent contravened the Act or the CMS. I am satisfied it falls within the dispute resolution provisions of the Act.[2]
• [8] I investigated the dispute, including reviewing the application, the submissions, the survey plan, and the CMS.

• [9] The body corporate says generally that the scheme's by-laws require that a lot owner seek the body corporate's prior written approval before proceeding with making improvements to common property. It says the respondent has made several improvements to common property without the necessary approvals and is therefore in breach of those by-laws. Although it has served the respondent with a notice of the by-law breaches, it says the respondent has not complied.
• [10] In an April 2024 Form 10 notice of a continuing breach of the by-laws, the body corporate claimed it had reasonable grounds to believe that the respondent was breaching By-laws 7.1, 10.1, and 17.1. As part of the correspondence exchanged between the parties following the notice, in June 2024, the body corporate advised the respondent that it required removal of:
  • ∗ 12 large white pavers and the black/grey plastic from underneath the soil so that the grass can regrow in this area
  • ∗ 1 empty, tall, large white planter
  • ∗ 2 x large black planters
  • ∗ 2 wheelie bins
  • ∗ the building material which appears to be wood or pavers and plant pots from behind the black planters and bins.
• [11] In the same correspondence, the committee sought confirmation that the above items would be removed. It says the respondent has not removed the items. It seeks orders requiring the respondent to remove the unapproved improvements to common property and to reinstate the common property to its original condition.

• [12] The owner of a lot made a submission opposing the application. In his view, communication has broken down between the parties. He infers the respondent considers the body corporate's attempts to enforce the by-laws are unfair, especially when viewed against similar actions undertaken by other lot owners to improve gardens proximate to their lots.
• [13] That owner also expresses the view that the common property gardens are not always maintained by the body corporate to a standard that is satisfactory to owners. Indeed, he suggests some gardens look like they have been abandoned. He provides photos to demonstrate as much. He also comments that communication with the committee is difficult, as illustrated by the respondent's struggle. This has led some residents to take it upon themselves to re-vegetate the common property in front of their lot.
• [14] In his view, the yard of Lot 63 looks better than some other areas of common property. It is understandable the owner of that lot is frustrated, both in dealing with the committee and where other residents have also modified common property. The submitter would rather see the committee using its time and body corporate resources to improve the degraded gardens than litigating with owners. If it is only matter of approval, this can be given retrospectively.
• [15] The respondent also provided a submission. It included a description of the history of the dispute, correspondence with the committee to support statements made in opposition to the application, and photos of the areas of common property in dispute. The respondent says:
  1. the landscaping works complained of were approved by the committee and carried out in 2020
  2. the only unapproved part was the painting of one planter box and some stonework, which have now been removed from common property
  3. the weed-mat is in an area that was never grassed and always overgrown with weeds
  4. the common property to the front of Lot 63 has been maintained to a much higher standard than other similar areas in the scheme
  5. in contrast, several other lots have pot plants on common property or have done works to the front yard common property that are unappealing, but no action has been taken by the body corporate against those owners or occupiers
  6. more than 80% of the occupiers of the scheme store their wheelie bins on common property (including committee members) and no action has been taken
  7. the wheelie bins for Lot 63 are stored more than 12 metres from the road, which is a cul-de-sac and not a thoroughfare
  8. committee members themselves breach the by-laws with no repercussions
  9. no-one from the committee has approached or engaged in a discussion with the respondent
  10. one of the committee members has been overstepping by hiding behind bushes, taking photos of the respondent and the property, and
  11. notwithstanding the prior approval, the respondent has submitted another application for the committee to approve the works, but the committee has delayed its consideration of the request.
• [16] The respondent views the application as frivolous, vexatious, and an abuse of power and asks that it be dismissed.

• [17] This application presents several questions relating to the enforcement of the scheme's by-laws. I will start by providing an overview of some general principles. I will then consider whether the applicant body corporate has demonstrated that the respondent has breached one or more of the by-laws.
• [18] If I am satisfied there has been a breach, I will consider whether it would be just and equitable in the circumstances to make the orders sought.

• [19] All community titles schemes must have a CMS and the CMS must include by-laws.[3] The CMS for the scheme is binding on the body corporate, each member of the body corporate, and certain others expressly identified in the Act.[4] An owner of a lot in the scheme is a member of the body corporate and is therefore bound by the CMS, including the by-laws.[5]
• [20] The body corporate's functions include administering the common property and enforcing the by-laws.[6] However, the body corporate must act reasonably in making decisions, including when it makes decisions about the common property and about enforcing the by-laws.[7]
• [21] When the committee is the making decisions on behalf of the body corporate, it too has a statutory obligation to act reasonably when making decisions.[8]
• [22] Where the body corporate reasonably believes that a person is contravening a by-law, the body corporate may decide to require the person to comply with the by-laws.[9] The body corporate must enforce the by-laws in the way provided under the Act.[10]
• [23] Generally speaking, the first step is for a body corporate to issue the breaching party with a contravention notice.[11] A contravention notice:
  1. can be about a continuing or a future contravention of the by-laws.
  2. must state certain things, including a statement that the body corporate believes a by-law is being breached, the specific by-law at issue, and details sufficient to identify the alleged contravention[12]
  3. must state a reasonable time by which the contravention must be remedied
  4. must advise the person that, if the breach is not remedied, the body corporate may make an application to the BCCM Office to resolve the dispute or may initiate proceedings with the Magistrates Court,[13] and
  5. although there is no specific form of contravention notice prescribed by the Act, the Commissioner produces BCCM Forms 10 and 11 to assist bodies corporate in ensuring compliance with the statutory requirements.
• [24] Adjudicators will generally require parties to comply with the statutory requirements for contravention notices. This is in large part because a respondent may incur a penalty for non-compliance.[14]

Did the Contravention Notice satisfy the requirements?

• [25] The Form 10 contravention notice issued to the respondent in April 2024 asserted that the respondent had breached 3 of the scheme's by-laws by:

[c]ompletion of works to gardens located on the common property (to the front of Lot 63) without prior consent of the Body Corporate, further works having been conducted after notifications being issued.

• [26] As an initial matter, I am not satisfied the contravention notice complied with the legislative requirement that the notice itself includes "details sufficient to identify the contravention."[15] The notice is vague and does not describe with any specificity the nature of the "works" to the gardens nor the "further works" it complains are in breach of the by-laws. It does not mention garbage bins, planters, or installation of weed-mat, nor does it specify any particular plantings it takes issue with. I am not satisfied that the Form 10 notice issued to the respondent in April 2024 was sufficient to satisfy the legislative requirements.
• [27] For completeness, I will proceed to consider the matter as if the Form 10 notice was sufficient, and I will consider whether the body corporate has demonstrated the respondent breached one or more of the by-laws, and whether it acted reasonably when making decisions about enforcing its by-laws.

• [28] By-law 7, which is titled "Damage to Common Property", provides in relevant part that:

(a) damage any lawn, garden, tree, shrub, plant Lot or flower being part of or situated upon Common Property;

• [29] The body corporate has provided no evidence that the claimed works by the respondent in any way damaged any part of the gardens or the plants therein. To the contrary, there is evidence to suggest that the body corporate had itself undertaken plumbing works in the area and that it was the body corporate's own works that caused damage to the gardens.
• [30] Further, the body corporate provides no evidence to demonstrate that the area where the respondent installed weed-mat was previously covered with grass. Indeed, the respondent claims that area was never grassed but instead was overgrown with weeds. Moreover, in July 2024, the respondent provided time-stamped photos to show the body corporate that there had been weeds, but no grass, in the area that now has weed-mat and mulch. The respondent also provided a written statement from the contractor who had done the landscaping that no turf had been removed from the front area and only native plants - as required by the body corporate and in line with its approval - were used. The contractor also noted he observed a neighbour, whom he understood to be a committee member, was often watching the works, including at one point from behind the respondent's car.
• [31] I do not consider installing weed-mat to an area that has no grass and is replete with weeds falls within the ordinary meaning of the word "damage."
• [32] I am not satisfied the body corporate has demonstrated a breach of By-law 7.1. Moreover, I do not consider there is sufficient evidence to demonstrate that the committee had a reasonable basis on which to form a belief that the respondent was breaching By-law 7.1.

• [33] By-law 10, which is titled "External Appearance of Lot", provides in relevant part that:

10.1 The Owner or Occupier of a Lot must not, without the Body Corporate's written approval, make a change to the external appearance of the Lot (for example installation of curtains, blinds or window tinting) unless the change is minor and does not detract from the amenity of the Lot and its surrounds.

• [34] This by-law is not concerned with common property but with changes to the appearance of a lot.
• [35] The body corporate makes no assertions that the respondent has made any changes to the lot. The application and the breach notice are only addressed to issues relating to common property. I am thus not satisfied the body corporate has demonstrated a breach of By-law 10.1. Nor do I consider there is sufficient evidence to demonstrate that the committee had a reasonable basis on which to form a belief that the respondent was breaching By-law 10.1.

• [36] The body corporate also claims the respondent is breaching By-law 17.1. That by-law, which is titled "Improvements", provides in relevant part that:

17.1 An Owner or Occupier must not make any Improvement to the Common Property without the written approval of the Body Corporate.

(c) making alterations to a garden on the Common Property; and/or...

• [37] Regarding the common property garden, the respondent says:
  1. in July 2020, a request was made to the body corporate "to gain approval to plant some native plants in my front garden and also remove the weeds as they are currently overgrown and quite unattractive"[16]
  2. a few days later, the request was approved by the committee, and the respondent was advised that:

The body corporate committee have approved your application so you ca [sic] go ahead. They have also asked me to advise you that they will be carrying out planting of natives from council soon, if you want to wait and see what is being done before deciding if you want to add any more.

1. in September 2020, the committee was advised that the works to the garden were being finalised and, with a tree being removed by the body corporate, further approval was sought "to plant some rosemary as a hedge where the old tree went." In the same email, the respondent sought to confirm that:

... if the plants that I plant in the front of my yard need to be all natives, or can they be any variation as long as they are planted correctly and with taste?

1. on 18 September 2020, the committee responded that:

The Body Corporate Committee have reviewed your request and are happy for you to plant a coastal rosemary hedge, which is native and in keeping with existing plantings within the complex. If you would prefer to wait, the Body Corporate Committee can include the front of your Lot in stage two of our complex plantings. Please advise which option you would prefer.

1. the committee was advised in writing that the respondent's preferred option was that the landscaper would finalise the works at the time rather than wait for stage two
2. a committee member observed the landscaping works during 2020 and did not raise any concerns at the time
3. the landscaper confirmed in writing in 2024 that no turf was removed and, in accordance with the body corporate's approval, only native plants were used
4. the respondent undertakes all the maintenance for the common property to the front of the lot, including all the weeding over the past 4 years, and adding new mulch, and
5. other common property front gardens are full of potted plants and weeds and the body corporate is not pursuing by-law breaches against those owners/occupiers.

• [38] Based on the evidence presented, I am satisfied the respondent complied with By Law 17.1 and in 2020 sought and was given written approval to improve the common property garden. Thus, I am not satisfied there is a breach of the by-law. I also consider the approval extended to the respondent being permitted to subsequently replace the plantings when they were disturbed by plumbing works.
• [39] Even if there was some confusion about the extent of its 2020 approval, by letter dated June 2024, the body corporate clearly advised that: "[t]he plants, although also unauthorised, can stay." In my view, this can only be seen as authorisation or ratification of the plantings.
• [40] I understand that the respondent has removed the planter boxes and pot and other materials that were at issue. This leaves the garbage bins and weed-mat. I do not consider garbage bins to be an improvement to common property as contemplated by By-law 17.1. Council garbage bins are an ordinary sight common to a suburban landscape. From the photos provided, the bins at issue are discretely stored in a clean and tidy condition, and there is no suggestion they are left haphazardly or present other issues. Regarding the weed-mat, the body corporate has not satisfied me that any turf was removed and, while it may arguably be an improvement, I consider it to have been approved with the original landscaping in 2020.
• [41] The application must fail, and I have made an order dismissing it.

• [42] Although I have determined that the body corporate did not serve an adequate contravention notice and that it failed to demonstrate the respondent breached the by-laws, I would have, in any event, have dismissed its application on another ground.
• [43] I consider there is sufficient evidence for a finding that the body corporate failed in the circumstances to act reasonably when it was making decisions about enforcing purported by-law breaches against the respondent. I am satisfied from the evidence and photos provided of the common property in the front of the respondent's lot and photos of the common property in front of other lots, that the body corporate did not consider a host of relevant factors, including:
  1. its own failings in maintaining those parts of the common property,
  2. the state of other areas of common property compared with the tidy appearance of the disputed area,
  3. (in)consistency in by-law enforcement, and
  4. the circumstances and requests of the respondent.
• [44] For all the above reasons I will dismiss this application pursuant to section 270(1)(c) of the Act on the grounds it appears to me to be misconceived and without substance.

• [45] I have made an order dismissing the application for the reasons given above.
• [46] To the extent the committee is seeking to enforce by-laws inconsistently or in a biased manner, the application may be also considered to be vexatious. Although there were certainly indications that might be the case, I had insufficient evidence to make such a finding here.
• [47] Where an adjudicator makes an order dismissing an application for being frivolous, vexatious, misconceived or without substance, I note that the adjudicator may under section 270(3)(a) order costs of up to $2,000 against the applicant as compensation to a party for loss resulting from the application. The respondent has not sought a costs order against the body corporate. However, the body corporate should be aware that an adjudicator may have regard to previous applications when making a decision about a future request for costs.[17]

[1] See id. at Section 276(1) of the Act

[2] See Sections 227 and 229 of the Act

[3] See Sections 24 and 66 of the Act

[4] Section 59(2) of the Act

[5] Section 31 of the Act

[6] See Section 94(1) of the Act

[7] See Section 94(2) of the Act

[8] See Section 100(5) of the Act

[9] See Sections 182 and 183 of the Act

[10] See Sections 182 and 183 of the Act

[12] See Section 182(4) of the Act

[13] See id. at Sections 182(4)(e) and 183(4)(e)

[14] See Ainsworth v Body Corporate for Viridian Noosa Residences [2014] QCATA 175 at [54]; see also City Connection II [2013] QBCCMCmr 376 at [31]

[15] See Section 182(4)(c) of the Act

[16] The respondent was also seeking approval for other works at the time. However, I am satisfied it is sufficiently clear from the correspondence that there was a request and approval to make improvements to the garden.

[17] See Section 270(3)(b) of the Act